Bill S1330-2011

Authorizes political subdivisions to award public contracts to participants of a MWBE program at a cost premium not to exceed ten percent of the lowest bid

Authorizes political subdivisions to award public contracts to participants of a minority and women owned business enterprise program at a cost premium not to exceed ten percent of the lowest bid.

Details

Actions

  • Jan 4, 2012: REFERRED TO LOCAL GOVERNMENT
  • Jan 6, 2011: REFERRED TO LOCAL GOVERNMENT

Memo

BILL NUMBER:S1330

TITLE OF BILL:

An act to amend the general municipal law, in relation to authorizing political subdivisions to award public contracts to participants of a minority and women owned business enterprise program at a cost premium not to exceed ten percent of the lowest bid as an available remedy to a demonstrated disparity

PURPOSE:

To ensure MWBE certified businesses can compete for local procurement opportunities.

SUMMARY OF PROVISIONS:

Amends Section 104-a of the general municipal law to provide that when purchasing goods, services or construction for public use on contracts less than one million a municipality may award the contract as reasonably competitive when (1) a study has found that there is or has been a disparity between the availability and the utilization of MWBEs in the award of contracts by such political subdivision or district therein; and (2) the bid does not exceed the lowest bid by more than ten percent.

JUSTIFICATION:

Many MWBEs are losing contracts by very small margins (a few percentage points). Though localities like the City of New York, which have increased its certified MWBE firms by over 40% from December 2006 to December 2007, the number of firms who win contracts remain very low, despite the goals set forth in NYC Local law 129 and the goals and utilization plans set forth by the individual agencies. Due to General Municipal Law § 103, localities cannot require agencies to award contracts to anyone but a lowest responsible bidder. This constrains localities from developing a stronger program that might result in more contract awards to certified MWBEs.

As many MWBEs are losing bids by very narrow margins, legislation that would allow the localities to give certified firms a small price preference could help address this problem. State Finance law 165(3) (b) (i) already allows for such a price preference for the state purchase of recycled goods (state agencies may purchase recycled commodities at a cost premium not to exceed ten percent of what a non-recycled commodity would cost or not to exceed 15% for commodities with over 50% secondary materials generated from NY waste stream). Legislation that mirrors STF §165, would allow municipalities to give certified MWBEs a small price preference when awarding qualifying contracts.

LEGISLATIVE HISTORY:

2009/10 - S.8575/A.6807 Passed Senate 2007/08 - S.8575/A.11672

FISCAL IMPLICATIONS:

None to the State; local impact would depend on how the law is implemented by a municipality.

EFFECTIVE DATE:

This act shall take effect on the 30th day after becoming law.


Text

STATE OF NEW YORK ________________________________________________________________________ 1330 2011-2012 Regular Sessions IN SENATE January 6, 2011 ___________
Introduced by Sens. DILAN, DIAZ, HASSELL-THOMPSON -- read twice and ordered printed, and when printed to be committed to the Committee on Local Government AN ACT to amend the general municipal law, in relation to authorizing political subdivisions to award public contracts to participants of a minority and women owned business enterprise program at a cost premium not to exceed ten percent of the lowest bid as an available remedy to a demonstrated disparity THE PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND ASSEM- BLY, DO ENACT AS FOLLOWS: Section 1. Section 104-a of the general municipal law, as amended by chapter 468 of the laws of 1994, is amended to read as follows: S 104-a. Purchasing [of products] for public use. 1. Notwithstanding the provisions of section one hundred three of this [chapter] ARTICLE, when purchasing products the officer, board or agency of any political subdivision or of any district therein charged with the awarding of public contracts may, wherever recycled products meet contract specifi- cations and the price of such products is reasonably competitive, purchase such products. For the purpose of this [section] SUBDIVISION and until July first, nineteen hundred ninety-six, "recycled product" shall mean any product which has been manufactured from secondary mate- rials, as defined in subdivision one of section two hundred sixty-one of the economic development law, and meets secondary material content requirements adopted by the office of general services [under subdivi- sion one of section one hundred seventy-seven of the state finance law] for products available to the political subdivision or district under state contract or, if no such contract for such product is available, any product which meets the secondary material content requirements adopted by the political subdivision or district thereof with respect to a specific commodity procurement by such entity. On and after July first, nineteen hundred ninety-six, "recycled product" shall mean, for
the purposes of this [section] SUBDIVISION, any product which is manu- factured from secondary materials, as defined in subdivision one of section two hundred sixty-one of the economic development law, and which meets the requirements of subdivision two of section 27-0717 of the environmental conservation law and regulations promulgated pursuant thereto. For the purpose of this [section] SUBDIVISION, "reasonably competitive" shall mean that the cost of the recycled product does not exceed a cost premium of ten percent above the cost of a comparable product that is not a recycled product or, if at least fifty percent of the secondary materials utilized in the manufacture of that product are generated from the waste stream in New York state, the cost of the recy- cled product does not exceed a cost premium of fifteen percent above the cost of a comparable product that is not a recycled product. Whenever such officer, board or agency shall purchase or cause the purchase of printing on recycled paper pursuant to this section, he or she shall require the printed material to contain the official state recycling emblem established pursuant to subdivision two of section 27-0717 of the environmental conservation law and regulations promulgat- ed pursuant thereto if such paper has been approved by the department of environmental conservation as satisfying the requirements of such stat- ute and regulations, or, if such paper has not been so approved, require the printed material to include a printed statement which indicates the percentages of pre-consumer and post-consumer recycled material content of such paper. 2. NOTWITHSTANDING THE PROVISIONS OF SECTION ONE HUNDRED THREE OF THIS ARTICLE, WHEN PURCHASING GOODS, SERVICES OR CONSTRUCTION FOR PUBLIC USE, THE OFFICER, BOARD OR AGENCY OF ANY POLITICAL SUBDIVISION OR OF ANY DISTRICT THEREIN CHARGED WITH THE AWARDING OF PUBLIC CONTRACTS THAT EMPLOY A MINORITY OR WOMEN OWNED BUSINESS ENTERPRISE (MWBE) PROGRAM, MAY AWARD ANY CONTRACT VALUED AT NO MORE THAN ONE MILLION DOLLARS TO A PARTICIPANT OF SUCH PROGRAM EVEN IF SUCH PARTICIPANT IS NOT THE LOWEST BIDDER FOR SUCH CONTRACT, PROVIDED, HOWEVER THAT SUCH AWARD MAY ONLY BE MADE TO THE LOWEST MWBE BID THAT IS REASONABLY COMPETITIVE. FOR THE PURPOSE OF THIS SUBDIVISION, AN "MWBE PROGRAM" SHALL BE DEFINED AS A PROGRAM DESIGNED TO INCREASE PARTICIPATION OF MWBES IN PUBLIC CONTRACT- ING THAT IS BASED ON A STUDY IN WHICH IT WAS FOUND THAT THERE IS OR HAS BEEN A DISPARITY BETWEEN THE AVAILABILITY AND THE UTILIZATION OF MWBES IN THE AWARD OF CONTRACTS BY SUCH POLITICAL SUBDIVISION OR DISTRICT THEREIN. FOR THE PURPOSE OF THIS SUBDIVISION, "REASONABLY COMPETITIVE" SHALL MEAN THAT THE MWBE BID DOES NOT EXCEED THE LOWEST BID BY MORE THAN TEN PERCENT. S 2. This act shall take effect on the thirtieth day after it shall have become a law.

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